House Would Cap Malpractice Awards

Steven Brostoff, Washington Editor

NU Online News Service, May 1, 3:34 p.m. EST, Washington?Punitive damages in medical malpractice lawsuits would be capped at $250,000 or two times compensatory damages, whichever is higher, under bipartisan legislation recently introduced in the House of Representatives.

The legislation, H.R. 4600, would establish a variety of new tort law restrictions that would apply solely to medical malpractice cases. Supporters of the bill say it is necessary to control what is called a medical malpractice "crisis."

"Personal injury lawyer attacks on doctors and other members of the healthcare community have driven up healthcare costs, decreased the quality of care patients receive, and prevented millions of Americans from accessing the healthcare system," said Karen Ignagni, president of the Washington-based American Association of Health Plans.

"Personal injury lawyers have benefited at the expense of consumers for far too long," she said.

H.R. 4600, Ms. Ignagni said, would protect patients by implementing many of the same medical malpractice reforms that have been successful in California.

Ken Schloman, Washington counsel for the Downers Grove, Ill.-based Alliance of American Insurers, said H.R. 4600 is a very reasonable bill that is worthy of consideration.

He particularly praised the legislation for encouraging structured settlements and addressing the issue of joint and several liability.

Introduction of the legislation comes in the wake of the release of a survey on the impact of litigation on the practice of medicine released by a new Washington-based organization called Common Good.

Leaders of the organization represent diverse political views, including former Senator and Democratic presidential candidate George McGovern and former Republican House Speaker Newt Gingrich.

According to the Common Good survey, 79 percent of physicians said they order more tests than they otherwise would based solely on the fear of litigation.

In addition, 74 percent of physicians said they refer patients to specialists more often than what they consider medically necessary due to the fear of litigation.

Philip Howard, chairman of Common Good, said in reaction to the survey results that Americans are losing their trust in justice.

"The common sense needed to run hospitals and classrooms has been replaced by legal fear," he said.

H.R. 4600 was introduced after the Common Good survey was released by Rep. Jim Greenwood, R-Pa., with nine bipartisan co-sponsors.

The legislation would require healthcare lawsuits to be filed no later than three years after the date of injury or one year after the claimant discovers, or should have discovered, the injury, whichever occurs first.

In addition to the cap on punitive damages, non-economic damages, such as pain and suffering, would be capped at $250,000.

Moreover, H.R. 4600 would bar application of the doctrine of joint and several liability in medical malpractice cases. This means that each defendant in a medical malpractice case would only be liable for its own share of responsibility for the damage.

The legislation would also place caps on contingency fees paid to plaintiff's lawyers.

Regarding medical devices, H.R. 4600 would bar punitive damages against the manufacturer or distributor of a medical device if the Food and Drug Administration approved the device before it was marketed.

On structured settlements, the legislation says that if an award of at least $50,000 is made against any party with sufficient insurance or assets to fund a structured settlement, the trial court must allow it if either party requests it.

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